Attorney General Barr at Federalist Society Convention CSPAN November 15, 2019 10:55pm-12:02am EST
[applause] [inaudible conversations] >> follow the house impeachment inquiry in the ministration response on c-span, unfiltered coverage live on tv, the radio up and online. watch "primetime" airs on c-span or stream any time on demand as he's been to org. /impeachment. >> william barr speaks to the federal society national lawyers convention for about an hour.
tradition is a critical part of our identity of americans. that reminder is more crucial today and they understood this connection. we want the series to remind lawyers of it so they foster legal principles that advance individual liberty and personal responsibility and the rule of law. other lectures have included justice scalia, chief justice roberts, vice president cheney, judges can star, robert, ray randolph, edith jones, doug ginsberg, jeff sodded in judge neil gorsuch's. also former attorney general and white house counsel, and senators tom and ben. that brings us to today's lecture. it is my privilege to introduce for this year's the honorable william barr attorney general of the united states.
people serve in government for a wide variety of reasons in addition to public service. there is power, there is a stepping stone to higher office, or the prestige of having a position than the honor when received while serving the country an important role. but in the current case, it is really difficult to see how most of the self-serving incentives apply. but when this still does is performing a valuable public service. indeed much of his career has been spent performing exactly such services going back to his early days with the cia. he received his ma from columbia in chinese studies and that may come in handy. [laughter] his gw from george washington. he clerked for the underrated judge malcolm on the u.s. court of appeals for the d.c. circuit
and in fact the public service he worked under president reagan, domestic policy staff and assistant attorney general for office of legal counsel in deputy attorney general. finally as a 77th attorney general under the first president bush. in the private sector he was a partner of sean pittman and later kirkland and after his a services attorney general for the first time he served as executive vice president of first gte and then brazen. and he is one of two people in the history of the country to serve the country twice as attorney general. it is my honor to present the 82nd attorney general of the united states william barr. [applause]
>> thank you very much. it is a real honor to be here tonight and join with all of you. i appreciate you all being here and it's particularly on honor to join the distinguished lawyers in this room and thank you for the introduction but i'm the 85th attorney general. [laughter] in chinese has come in very handy because i find that when you read congressional enactment from right to left they make a lot more sense. [laughter] it is an honor to be here this evening and to deliver the 19th annual barbara k olson
mario lecture. i have had the privilege of being friends with ted since we first met in the reagan administration and ted was head of the office of legal counsel and had the privilege of knowing barbara and had great affection for her and i miss her brilliance and ebullient and it's a real privilege for me too participate in this lecture of a way of honoring barbara. i was trying to figure out what would be inappropriate speech to give here at the federal society and i was having difficulty i thought maybe the notre dame speech had done so well i was just going to do it again. [applause]
but recognizing that this year's annual convention is a regionalism, the theme, which is a fitting choice though i do say it's somewhat unoriginal for the federalist side. i say that because we all know that the federal society has played an historic role in advancing the principles of a regionalism and while other organizations have contributed over the years, certainly the federal society has been in the vanguard. a watershed for the cause was a decision of the american people to staine send warm awake into e white house accompanied by his close adviser ed neese and the cadre of others who are firmly committed to an original o origt approach to the law. i was honored to work with ed
and can in the white house -- in the reagan white house and i was also honored to be there several weeks ago in the oval office when president trump presented ed neese with the presidential of freedom. [applause] as president trump noted, over the course of his career ed neese has been among the nation's most eloquent champions for following the constitution as written. and i'm also proud to serve as attorney general for president trump who is taking up the torch in his judicial appointments. that is true of his two outstanding appointments to the supreme court, the supreme court justice neil gorsuch in brett
kavanaugh. [applause] and of the many superb appeals and district court judges he has appointed in many of whom are here this week and of the many outstanding nominees to come in many of whom are also here this week. [laughter] i wanted to choose a topic for this afternoon's lecture that had an originalist angle and will likely come as little surprise to this group that i've chosen to speak about the constitution approach to executive power, i deeply admire the american presidency as a political and constitutional institution and i believe it's one of the great and remarkable innovations in our constitution and has been one of the most
successful features of the constitution and protecting the liberties of the american people. more than any other branch it has fulfilled the expectations of the framers. unfortunately over the past several decades we have seen a steady encroachment on executive authority by the other branches of government. this process has substantially weakened the function of the presidency to the detriment of the nation. in this afternoon i would like to expand on these themes. first let me say what the framers had in mind in establishing an independent executive in article two of the constitution. the grammar school class version of our revolution it was a rebellion against. knee and in framing our
constitution with the preoccupation, the main preoccupation of the founders was to keep the executive week. this is misguided. by the time of the glorious revolution of 1689 the power was effectively neutered and have begun its steady decline, parliamentary power was well on its way to supremacy and effectively in the driver seat. by the time of the american revolution the patriots well understood that their prime antagonist was an overweening parliament. indeed british think they came to conceive a parliament as a very seat of sovereignty. during the revolutionary era, american thinkers who initially considered inaugurating a republic reform of government tend to think of the executive component of essentially a
supreme legislative branch. often the executive, sometimes constituted as a multimember counsel was conceived as a creature dependent on subservient to the body. housel function was carrying out the legislative will. under the articles of confederation for example, there was no executive independent of the legislative power. things changed by the constitutional convention of 1787. to my mind, the real miracle in philadelphia that summer was a creation of a strong executive, independent of and coequal with the other branches of government. the consensus for strong independent executive arose from the framers experience and the
revolution and under the articles of confederation. they had seen that the war was almost lost in the bumbling enterprise because of the lack of strong executive leadership. and under the articles of confederation they had been mortified by the inability of the states to protect themselves against foreign impositions or to be taken seriously in the international arena. they had also seen after the revolution to many states had adopted constitutions with weak executives overly subordinate to the legislatures. if this had been the case, state governments have proven incompetent into radical. for these practical experiences, the framers had come to appreciate that th to be succesl
a republican government required to capacity to act with energy, consistency and decisiveness. they had come to agree that those attributes could best be provided by making the executive power independent of the divided councils of the legislative branch investing the executive power in a solitary individual regularly elected for a limited term by the nation as a whole and as jefferson put it, for the prompt, clear and consistent action, so necessary in an executive, unity of person is essential. while there have been some differences among the framers as to the precise scope of executive power in particular areas there was general agreement about its nature. just as a great separation of
powers theorist such as polybius and montesquieu and locke, just as they had, the framers thought executive power as a distinct specie of governmental power. to be sure executive power includes the responsibility for carrying into effect, executing, the laws passed by the legislator. that is applying the general rule to particular situations but the framers understood that executive power meant more than this. it also entailed the power to handle essential sovereign functions such as the conduct of foreign relations and the prosecution of war. which by the very nature cannot be directed by a pre-existing legal regime but rather demand speed, secrecy, unity of purpose and prudent judgment to meet
contingency. they agreed that due to the very nature of the activity involved in the kinds of decision-making that are required, the constitution generally vested authority over these fears in the executive. for example, jefferson, our first secretary of state describe the conduct of foreign relations is executive altogether. subject only to the explicit exceptions defined in the constitution such as the senates power to ratify treaties. a related and third aspect of executive power is empowered to address circumstances that demand quick action to protect the well-being of the nation but in which the law is silent or inadequate. such as dealing with natural disasters or plagues. this residual power to meet
contingency is essentially the founder of power discussed by locke and his second treatise. and finally there are the executive powers necessary for internal management of the executive. these are the powers necessary for the president to superintend and control the executive function. including the powers necessary to protect the independence of the executive branch and the confidentiality with internal liberation. some of these powers are expressed in the constitution such as the power of appointment and others are implied. complicit in the constitution. for example the removal power, one of the more amusing aspects of modern progressive polemic is the breathless attacks on the unitary executive theory.
[laughter] [applause] they portray this as newfangled theory to justify executive power of sweeping unfettered scope. i think some of you may have seen a horrible movie vice about the vice president cheney and there's a scene where the young cheney, he was young i think he may been 36 years chief of staff of the white house and he goes into meet the young school leah at the office of legal counsel and they talk about the new theory that will allow them to take over the world and is called the unitary executive theory. [laughter] and some of you may recall when i was up for confirmation, all
the democratic senators saying how concerned they were about my adherence to the unitary executive theory. [laughter] in reality the idea of the unitary executive does not go so much to the breath of the presidential power, rather the idea is whatever the executive power may be, those powers must be exercised under the president's supervision. this is not new and not a theory. it is a description of what the framers did an article two. [applause] and they have to decide to establish a function independent of the legislature in the next question is, who will perform the function. the framers had two potential models, they could insinuate
checks and balances into the executive branch by conferring power on multiple individuals such as the council and that's dividing the power within the executive. or they could invest in the clipart in a solitary vigil. they quite explicitly and uniformly chose the latter model because they believe that investing executive authority and one person would and view the presidency with precisely the attributes necessary for energetic government and even jefferson who is usually seen as less of a hawk in hamilton on an executive power was insistent that executive power be placed in single hands and he cited the americans unitary executive as a single future that distinguished america's success from the
failed republican experiment. the implications of the framers decisions are obvious. if congress attempts to vest the power and execute the law to someone beyond the control of the president it contravenes the framers clear intent to vest the power in a single person. the president. so much for the supposedly no serious new theory of the unitary executive. we'll understand the framers expected that the three branches would be jostling and jousting with each other as each threatened to approach on the prerogatives of the others. they thought this was not only natural but salutary. and they provisioned each branch with the wherewithal to fight and defend itself in these interbranch struggles for power.
so that we turn now to have the executive president lee faring in the bottles. i am concerned the deck has become stacked against the executive and since the mid-60s there has been a steady grinding down of the executive branches authority that accelerated after watergate. more and more the president's ability to act in areas in which he has discretion has become smothered by the impertinence of the other branches. when these disputes arise, there's two aspects of contemporary thought, conventional wisdom that tend to operate to disadvantage of the executive. the first is, this notion of politics and a free republic is all about the people's branch, the legislative branch and the judicial branch protecting
liberty by imposing restrictions on the executive. the premise is the greatest danger of government becoming oppressive is from the executive and the prospect of executive success. so there is a tendency to see the legislative and judicial branches as the good guys protecting the people from a would-be autocrat. that is the media general presentation of separation of powers issue. this prejudice is wrongheaded and atavistic. it comes out of the english week view of politics in english constitutional experience where political evolution was precisely that. you started out with the king having all the cards, he holds
all power including legislative and judicial and political evolution involves a process by which the legislative power gradually over hundreds of years reined in the king and extracted and established its own powers as well as the powers of the judiciary. certainly a watershed in the evolution was a glorious revolution of 1689. but by 1787 we had the exact opposite model in the united states. the founders greatly admired how the british constitution had given rise to principles of balance government but they felt that the british constitution had achieved an imperfect form of this model. they saw themselves as framing a more perfect version of separation of powers and a balance constitution.
and part of the more perfect construction was a new kind of executive. they created an office that already was the ideal a wig executive. it already had built-in the limitations that the doctrine had aspired to for centuries. it did not have the power to tax and spend, it was subject to habeas corpus. it was bound by due process and enforcing the law against members of the politics. it was selected for a limited term of office and elected by the nation as a whole. that is a remarkable democratic institution. the only figure selected by the nation as a whole and with the creation of the american presidency, the whigs obsessive focus on the dangers of narco
rural lost relevance. this fundamental shift in view was reflected in the convention debates over the new frame of government. their concerns were very different than those that weighed on the whigs of the 17th century, it was not that executive power was so much concern to them, it was the danger of the legislative branch at the time which they viewed as the most dangerous branch to liberty. as madison warned, the legislative department is extending the sphere of this activity and drawing all powers into its impetuous vortex. indeed they view the presidency as a check on the legislative branch. the second contemporary way of thinking that i think operates against the executive is the notion that the constitution does not sharply allocate powers
among the three branches. but rather the branches, especially the political branches share powers. the idea is because two branches both have a role to play in a particular area, we should see them as sharing power in the area and it's not really such a big deal if one branch expands its role within the sphere. whenever i see a court opinion using the word share i want to run in the other direction. it reminds me -- there's a kid and my grandchild's preschool who as soon as my grandchild is playing with a toy reaches over and says share. [laughter]
this thinking obscures what it means to say powers are shared under the constitution. the constitution generally assigns powers to each of the branches and defined areas. that's the legislative power is granted in the constitution and whatever the power and legislative power is in the constitution is granted to congress. at the same time, the constitution gives the executive a specific power in the legislative arena, the veto power. that's executive shares legislative power but only to the extent of that specific grant of the veto power. the executive does not get to interfere in the legislative power in the broader sense than that that was the legislative power assigned to congress.
in recent years both the legislative and judicial branches have been responsible for encroaching on the president's constitutional authority. let me say something about the legislature. as i said the framers fully expected intense pulling and hauling between congress and the executive. unfortunately, in the past few years we have seen these conflicts take on an entirely new character. immediately after president trump won election, opponents inaugurated what they call the resistance and they rallied around an explicit strategy of using every tool and maneuver to sabotage the functioning of the executive branch and the administration. now resistance is the language used to resecur describe rule in
occupying military power. it obviously connotes that the government is not legitimate, this is a very dangerous and indeed re-notion to import into the politics of a democratic republic. [applause] what it means, instead of viewing themselves as a loyal opposition as opposing parties have done in this country for over 200 years, they essentially see themselves as engaged in a war to cripple by any means necessary a duly elected government, a prime example of this is a sentence unprecedented use of the advice and consent
process. the senate is of course free to exercise the power to reject what it deems to be unqualified nominees. but that power was never intended to allow the senate to systematically oppose and rollout the approval process for every appointee to prevent from building a functional branch of government. [applause] yet that is precisely what the senate already has done from president trump's very first day in office. as of september this year, the senate has been forced to invoke cloture on 236 trump's nominees. each of those representing its own massive consumption of legislative time meant only to
delay the inevitable confirmation. how many times was he invoked on nominees during the president obama administration? 17 over eight years. how about the second president bush first term, four times. it is reasonable to wonder whether a future president will actually be able to form a functioning administration if his or her party does not hold the senate. in recent years they have largely advocated the core function of legislating from the most pressing issues facing the nation. they either decline legislate on major questions or if they do they punk the most difficult and critical issues by making broad delegations to a modern administrative state that they
increasingly seek to insulate from presidential control. this phenomenon arose as we know in the wake of the great depression as congress created independent agencies and house them not only in the executive branch. more recently the dodd frank act creation of the cfpb, a single headed independent agency that functions like a junior varsity president for economic regulation is one of many examples. of course congress is effective with the withdrawal of business of legislation and leaves it with a lot of time on his hands. and in the pursuit of this choice of what to do with all of this time, they have decided especially opposition to drowned the executive branch with oversight demands for testimony
and documents. i do not deny that congress has some implied authority to conduct oversight as an incident to his legislative power but the sheer volume of what we see today, the pursuit of scores of parallel investigation to an avalanche of subpoenas is designed to incapacitate the executive branch and indeed is counted as such. the cost of this harassment are real. we understand the confidential communication in the private internal deliberative process are a central to all of our branches of government to properly function. congress and the judiciary know this will as both have taken great pains to show their own internal communication from public inspection.
there is no foia, foia for congress and the courts, your congress is happily created a regime that allows the public to seek whatever documents and wants from the executive branch and at the same time individual congressional committees spend the day trying to publicize the executive internal deliberations . . . >> the work of the people. in recent years we have seen substantial encroachment by congress in the area of executive privilege. the executive branch and the supreme court have long recognized that the need for confidence and confidentiality
in the executive branch necessarily means that some communications must remain private. there was a time when congress respected this important principle as well. but today congress is increasingly quick to dismiss good faith attempts to protect executive branch equities and labeling such efforts of obstruction of congress and holding cabinet secretaries even the attorney general in contempt. one of the ironies of today is that those who oppose this president, constantly accuse this administration of shredding constitutional norms and waging a war on the rule of law. and of course there is no substance to these flames. and why my friends on the other side, what exactly are you
referring to. i usually get stairs and sputtering about the travel ban or some such thing. the fact is why the president has certainly thrown out the traditional beltway playbook and otilio, [laughter] [applause] he was upfront about what he was going to do and the people decided they wanted him to serve as president. [applause] on and talking about now are fundamental constitutional precepts and the fact is that this administrations policy actions and its policy initiatives, including the travel ban have transgressed neither constitutional nor traditional norms that have been amply
supported by the law and patiently litigated through the courts to vindication. [applause] indeed measures undertaken by this administration seem a bit time when compared to some of the unprecedented steps taken by the obama administrations aggressive exercise of executive power and i see that as someone who admires a muscular executive. [laughter] and the fact of the matter is that in waging a scorched-earth, no hold barred war of resistance against this administration, it is the lift that is engaged in the systematic shredding of norms and undermining the rule of law.
[applause] this highlights the basic disadvantage that conservatives have had in contesting the political issues of the day. and goes back to the beginning of the republic. it was adverted to that old curmudgeonly pendulous for dreams and several of the essays during the early public in a fair price. and in the edge of the so called progressives, geopolitics is the religion. in their holding mission is to use the coercive power of the state to remake man and society in their own image according to
an abstract ideal of perfection when ever it means the use of the heart justified because, they are virtuous people pursuing a an end. they are wheeling to use amy means necessary to gain momentary advantage in achieving their end. regardless of the collateral consequences and the systemic implications. they never ask whether the action they take could be justified as a general rule of conduct equally a bigger wall to all sides but would we say if the shoe were on the other foot and again we hear them irresponsibly tabling proposal to do away with the electoral college or to pack the courts and who is shunning constitutional norms.
[applause] concern is on the other hand do not see an earthly paradise. we are introduced introduced interested in preserving long-run the proper balance of freedom in order necessary for the healthy development of natural civil society and individual human flourishing. this means that we naturally test the propriety and wisdom of action on a rule of law standard. in the essence and that standard is to ask what the overall impact on society over the long what would be the impact on society over the long run. if the action we are taking or the principal we are applying a given circumstance was universalized. that is, would be good for
society as a whole over the long run if this was done in world like circumstances. this what rule of law is about. and that is inherent in the conservative project. [applause] mature now to what i believe has been the prime source of the erosion of separation of powers principles and generally. and the executive branches authority specifically and i am speaking of the judicial branch. recent years the judiciary has been steadily encroaching on the executive responsible lease in the wake and substantially undercut the functioning of the present. in the course after this in two ways the first the judiciary has appointed itself, the ultimate overture separation of powers disputes between congress and the executive thus preempting
the political process which the framers can see as their primary check and interbranch rivalry. the judiciary has the presidential authority for itself and either fight on the rubric of review, substituting its judgment for the executive in areas committed to the president discretion or by assuming direct control over rounds of decision-making that hereto for, having considered at the core of presidential power. the framers did not envision that the course would play the brawl of arbiter of church disputes between the political branches. as madison explained in federal 51, the great security against the gradual concentration of the several powers, in the same
department consist of getting to those who administer each department the necessary constitutional means and personal motives to be just encroachments of the others. ambition will be made to counteract ambition. and by giving each the congress and the presidency, the tools and the fend off the encroachment of the others, the framers believe this would of course compromise and political accommodation. the constitutional means to resist encroachment the medicine describes takes many forms as just justice glia observed that the constitution gives congressman in the present many clubs of which should be each other. conspicuously absent from the last is running to court to have them resolve the disputes that mr. make sense but it judiciary works to pronounce it
resolution, constitutional disputes, between the political branches, and it does not act as a coequal. another political branches believe the course will resolve their constitutional disputes, they have no incentive to debate their differences through the democratic process with input and accountability to the people and they will not even try to make the hard choices necessary to forge a compromise. a long experience of our country, is that the political branches can work out their constitutional differences that went out resort to the courts. in amy if it, the prospect of the courts can meaningfully resolve interbranch disputes about the meaning of the constitution is mostly a false promise. as court supposed to decide for example with the congresses hard
to collect information in pursuit of this legislative function overrides the president's power to receive confidential advice in the pursuit of his executive function. nothing in the constitution provides unmanageable standard for resolving such a question. and it is thus no surprise that the course of produce it work this unpredictable balancing tests like the courts holding. the congress did not call. just dropped a proper balance between the coordinate branches by preventing the executive branch from accomplishing its constitutionally inside function. apart from this, their overzealous brawl interbranch disputes, the courts have increasingly engaged directly in the use of patient a presidential decision-making one
way courts have effectively done this is by expanding both the scope and the intensity of judicial review. in recent years, my lift side and the fact that many critical decisions in our life are not amenable to the model of judicial decision-making that cannot be reduced to tidy evidentiary standards has specific quantum news approve in an adversarial process. they require always call financial judgment. and they are decisions that are frequently have to be made promptly and incomplete and uncertain information and necessarily involve the length of the wide range of competing risks and making predictions about the future. such decisions frequently grow into play the so-called precautionary principle and this is the principle that when a decision-maker is accountable, or discharging a certain
obligation such as protecting the public security, it is better when assessing imperfect information to be wrong and safe the wrong sorry. it was once woa recognized that such matters were largely unreviewable and that the courts should not be substituting their judgments for the prudential judgments reached by the accountable executive officials in this outlook now seems to have gone by the words courts are now on the banner of judicial review the substitute their judgment for the president on matters that only a few decades ago would've been unimaginable such as matters directly involving national security and foreign affairs. the travel ban cases good except for the president as you will know mayday decision on an explicit legislative plant of authority in black and white that he had the authority as
well as his long recognizes constitutional nationals that can enable two different rarely suspend injury to aliens coming from half a dozen countries, pending adoption of more effective wedding procedures. the common denominator of the initial country selected, was that they were unquestionably of the exempt curst activity which lacked functional governments and responsible law enforcement and intelligence agencies to good assistance in identifying the security risks among their national seeking to enter the united states but despite the fact that there were clearly justifiable security grounds for measure that this district court in hawaii and the ninth circuit, like this public safety measure for year and a off in the theory was that the president's motive for the order was religious bias
against muslims. this wasn't just the first of many immigration measures based on good and sufficient security grounds that the courts have second-guessed since the beginning of the trump administration. the trap open case highlights an especially troubling aspect of the recent tendency to expand judicial review in the supreme court has refused across state wide variety of context to inquire into the subjective motivation behind government action. to take the classic example if the police officer has probable cause to initiate a traffic stop, it is subjective motivations are irrelevant. and just last term supreme court appropriately shut the door to flames that otherwise will be
redistricting, can violate the constitution if the legislatures who drew the lines were actually motivated by political partisanship. what is true of police officers and jury matters equally true of the president and senior executive officials. [applause] with very few exceptions, neither the constitution nor the administrative procedures act, or amy of the relevant statute calls for judicial review of executive motives. they apply only to executive action and attempts by courts to act like amateur psychiatrists attempting to discern an executive officials real motives often after ordering invasive discovery into the executive branch is privileged decision-making process have built more foundation for that
is the subpoena to court to try to determine a judges ramada and issuing a decision. [applause] the court indulgence of such flames, even if they are ultimately rejected represents a serious intrusion on the president's constitutional prerogatives. the impact of these judicial intrusions on the executive responsibility, having usually magnified by another judicial innovation. the nationwide injunction. first you sent 1963, and sparingly since then until recently, these court orders enjoying evan enforcement policy not just as to the parties
before the court, but nationwide against everybody. since president trump has taken office district courts have issued over 40 nationwide injunctions against the government. by comparison, during president obama news first two years, district court said issued to nationwide injunctions about the widget immediately vacated the ninth circuit. [it is no exaggeration to see that virtually every major policy of the trump administration has been subjected to immediate freezing by lower courts. no other president has been subjective to such sustained efforts to debilitate his agenda. legal flies underlying myriad, and just to summarize briefly, they have no foundation in the
article three jurisdiction or traditional equitable powers of the courts. they radically inflate the brawl of district court judges allowing anyone of woa over 600 individuals single-handedly freeze a policy nationwide. the power that no single judge or justice, and accomplish. the foreclosed percolation and debate among lower courts often requiring the supreme court to decide complex and consequential legal issues in emergency tauscher is limited breaking and they enable transparent chopping which talks public confidence in the integrity and the displays, the settlement net mechanisms of aggregate litigation of genuinely nationwide flames. such as rule 23 class actions. animate particular welcome nationwide injunctions, also
disrupt the political process. there is no better example than the court news handling of the rescission of daca. as you recall data was a discretionary policy of americans adopted by the obama administration. in the fifth circuit concluded that the closely related daca policy, along with an expansion of the daca policy was unlawful. the supreme court affirmed the decision by an equally divided vote. and given that daca was discretionary, premised on the exercise of the executive discretion, and that four justices apparently thought illegally indistinguishable policy was unlawful, president trump news administration understandably decided to resume daca. kimberly however the president couple that rescission with negotiations over legislation that would create a lawful and better brawl genitive as part of
the immigration compromise. in the middle of those in need of this very same day the president invited the cameras into the cabinet room to broadcast his negotiations with the bipartisan leadership of congress. i district court judge in the northern district of california, enjoying the rescission of daca, nationwide. unsurprisingly can the over immigration legislation, collapsed. after one sided achieved his preferred outcome tuesday judicial means. and just this week, the serene court finally heard arguments on the totality of the daca rescission. the court will not likely decide the case until next summer. meaning that the president trump will have it's been almost his entire first term and forcing president obama news signature immigration policy even though
the policy was entirely discretionary and half of the supreme court had concluded that it was legally indistinguishable he illegally indistinguishable all for the seat was awful. that's not how the democratic to some sugar. to my mind the most blatant and consequential executive power in our history, was played out during the administration of george w. bush. when supreme court in a series of cases set itself up as the ultimate arbiter as superintendent of military decisions in parent prosecuting military conflict. decisions that live at the very core of the president's discretion as commander-in-chief. if you sit climaxed at the course 2008 decision in providian. it in there at the supreme court overturned hundreds of years of american earlier british law and
practice which had always considered decisions as to whether they detain combatants to be purely military judgments which civilian judges have no power to review. the first time, the court ruled that the foreign persons who have no connection with the united states other than being confronted by our military forces on the battlefield, had due process rights and thus, have the right to habeas corpus is to update judicial review of whether the military has sufficient evidentiary basis for holding them as prisoners. in essence, the court has taken the rules that govern our domestic criminal justice process and carry them over and superimpose them on the nation activities when it is engaged in armed conflict with foreign imminent enemies. this rights rush i over a
fundamental distinction that is integral to the constitutional and integral to the brawl played by the president in our system. the preamble suggests, the governments are established for two security reasons. two different security reasons. to secure domestic tranquility, and to provide for defense against his external dangers. and two very different rooms of government action. in a nutshell, on the constitution when the government is using its law enforcement powers, the met domestically, to discipline and a member of the community for a violation of law, and protecting the liberty of the american people requires that we sharply curtail the government news power so that it does not itself, threatened the liberties of the american people. that's a constitution in this
arena, deliberately sacrifices efficiencies. and investigates the accused with rights that are essentially create a loophole playing field between the collective interest of the community and those of the individual. and it dilutes the government news power by dividing it and turning it on his self as a check. and at each the criminal justice process, the judiciary is expressly empowered to serve as a check and neutral arbiter. none of these considerations are a bigger wall when the government is defending the country against armed attacks from foreign adversaries. and in this room the constitution is concerned with one thing. preserving the freedom of the political community by destroying the external threat. and here the constitution has brought concerned with handicapping the government to preserve other values.
the constitution does not confer rights on foreign enemies. rather the constitution is designed to maximize the governments efficiencies to achieve victory. even at the cost of collateral damage. it would be unacceptable in the domestic law enforcement room. and the idea that the judiciary acts as a natural check on the political branches to protect foreign enemies from our government is insane. [applause] the impact has been extremely consequential. i see its consequences everyday. for the first time in american
history, our armed forces are incapable of taking prisoners. we are now in a crazy position that if we identify a terrorist enemy on the battlefield, such as an isis leader, we can kill them with a drone strike party weapons. but if we capture them, the military is tied down in developing evidence are an process and must spend massive resources in interminable litigation as to whether there was a sufficient basis to capture this prisoner. and the fact our course that went out wheeling to invade and muck about in this core area of presidential responsibility, illustrates how far the doctrine of separation of powers has been eroded. now in this partisan edge, we should take special care not to
allow the passions of the moment to cause us to permanently disfigure the genius of our constitutional structure. as we look back over the sweep of american history, in my view it is been the american presidency that has best fulfill the vision of the founders and is brought to our republic the dynamism and effectiveness that other democracies plainly lack. in every critical juncture, the country has faced a great challenge, whether it be our earliest years as a weaker nation country combating internal rebellions and maneuvering for survival in a world of far stronger nations or whether it is been during a period of continental expansion with the louisiana purchase, and the acquisition of mexican
territory it took us all of the way across the continent. whether it be the civil war and the epic test of this nation. world war ii and the struggle against fascism. or the cold war, and the challenge of communism. and the struggle against racial discrimination and most recently, the fight against islamist fascism and international terrorism. one would have to see that it is been the american presidency that has stepped to the floor and provided the leadership and consistency energy and perseverance that allowed us to surmount these challenges and brought us through into success. and in so many areas it is critical to our nations future that we restore and preserve in full vigor our founding principles. and the least of these, is the framers vision of a strong
[background sounds] next week, the house intelligence committee and chair and a check, continue public impeachment inquiry hearings. beginning tuesday morning at nine eastern, as he it's been three. watch live testimony from jennifer williams, eight to vice president mike has an director european affairs of the national security council lieutenant colonel alexander bittman in at 230, investor hurt the special envoy to ukraine, and national security council might have said to morrison. on wednesday at 9:00 a.m. eastern, testimony continues with u.s. ambassador to european union. and at 230 deputy assistant secretary of defense for russian ukrainian and eurasian affairs and david hale, on secretary of state for political affairs and on thursday, 9:00 a.m. eastern the committee will hear testimony from hanna hill, former national security council
senior director for you're up and russia. watch the first two public hearings in their entirety on website cspan.org/impeachment there you will also find ocedures for the hearing. plus the point of interest speaker that identifies key moments during the very indicated by headstart and the timeline. next week, watch live coverage of the house impeachment inquiry hearings as he it's been three and cspan.org arneson live wherever you are, with free cspan2 radio app. >> connecticut with constituents in dorian connecticut, this happened prior to the start of the public impeachment hearings. it is an hour and 15 minutes. [applause] >> thank you. jamie thank you very much. for that kind introduction and for your terrific leadership the town of dorian.